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Tempest in a legal-information teapot?

The posting on a Thomson Reuters blog of videotaped comments by Bob Berring, U.C. Berkeley’s long-time law librarian, distinguished professor, and former interim dean, have created something of a stir among followers of the legal-information marketplace. In the comments featured on LegalCurrent, a blog by West’s parent company Thomson Reuters, Berring expresses measured but profound skepticism of the viability of both directly government-hosted free legal information and of free legal-information efforts based on “volunteer” efforts (i.e. not based on a commercial vendor’s model). There has been a fair amount of online commentary in response to this video, and I’ve tried to articulate a few of my thoughts about the role of the emerging free sources, below.

Among other posts and commentary, the Berring video attracted comments from Carl Malamud of Public.Resource.Org and, later, a lengthy reply by Thomas Bruce of the Legal Information Institute. Malamud’s organization has been a leader in efforts to secure bulk access to legal and other government information (see Law.gov), in order to lower barriers to entry for those who wish to build innovative and/or low-cost access tools. The Legal Information Institute, a non-profit activity of Cornell Law School, is (among other things) a (the?) major free web-based provider of organized American legal primary sources and some appealing tools for access and use of those sources. (For what it is worth, the LII’s presentation of the U.S. Code is a particularly valuable.) Betsy McKenzie, of Suffolk University Law School, usefully summarizes the sequence of events over at Out of the Jungle.
While my headline may have made light of the ‘small world’ in which this is a major dispute, there are important issues at stake for the legal practice community and, more broadly, for governance in a nation of laws. Earlier blog-based commentary by Dan Dabney, long of West and now Senior Director for Classification at Thomson Reuters, and a “friendly rebuttal” of sorts from Prof. Bruce usefully clarify some of the thinking about providing meaningful access to legal information from two major participants in two different models of publishing and mediating access to legal information.
My own thoughts are that, first, I don’t put an enormous amount of stock in the idea that free online legal repositories are usually effective at making the law meaningfully accessible for the legally-untrained, and am skeptical of the idea that true laypeople will often be remotely effective direct users of the services built on databases of free legal information. (But it is very important when they are!) This is not to say we shouldn’t try to build tools that at least enhance general accessibility, just that I think the world of effective end users is still a pretty selective, pretty educated, world. Indeed, to the extent that free sources are rightly characterized as lacking the indexing, editorial annotations, and other “hooks” associated with commercial publishing, they may especially abound in pitfalls for the legally-uneducated researcher (or sloppy practitioner). That’s not to say they won’t still, more indirectly, have the effect of democratizing access to the law, but by improving the ready availability of information to the (trained, savvy, educated) attorney and legal researcher doing work in pro bono or small practice circumstances in which the premium services are cost prohibitive (by reducing hours spent commuting back and forth to the county law library?).
But I also can see a role for various free or low-cost, web-based, services even within the environment of the risk-averse, high-stakes, legal players at the top of the market, who will, for the foreseeable future, remain customers for top-drawer services such as those provided by Lexis/West and high-end services from CCH/BNA/RIA etc. These consumers still need the “insurance policy” of the completeness and thoroughness that these resources make possible (though, of course, only skilled and talented researchers get that, regardless of tools) and are still able to pay for it. But they may become less willing or able to pay for it all the time. Lexis and West are no doubt alert to the possibility that even the top-end consumers may increasingly look to reduce the frequency or intensity of their reliance on top-end services and tools.
A second observation is that most of the referenced commentary assumes that the high-end commercial model equals indexing, (rigorously managed) editorial supplementation, controlled-access systems (think Key Numbers), and other complex, laborious, “rigging” of findability. Free, on the other hand, is taken to mean a (relatively) unedited mass, intended for full-text algorithmic keyword searching, and with any metadata efforts applied not rising to the level of controlled-vocabulary indexing, the application of editorial consistency, etc. In fact there is a huge middle-ground in terms of structure and mediation. At least for case law, free has tended to mean algorithmic search (along with all its problems for hierarchical, differentiated, bodies of information like legal texts) because it is cheap, and teams of editors are costly. And, indeed, case law is where the free sources have (so far) made their least impressive inroads (with more success around source material like codes that has some built-in structure). But, if nothing else, the sometime-success of open-source software development teaches that human labor can be coordinated in the production of information products outside of closed, proprietary, enterprises. The community of library catalogers demonstrates that controlled vocabularies, also, are not solely the domain of centralized editorial enterprises. I’ll grant that there are powerful advantages to an entity like West in comprehensively and consistently organizing legal source material, but also think no models are set in stone, and more human coordination in providing mediated access within the world of free/cheap information (even for case law?) is at least possible. On the flip side, Lexis and Westlaw, and other high-end vendors, have hardly resisted the temptation to “googleize” – sometimes effectively and sometimes not – portions of their interfaces and products, even when doing so muddies any messaging intended to sell their own editorial and indexing strengths.Andrew Plumb-Larrick

One single comment

Thanks for this thoughtful piece. This little comment box is probably not the place to write lengthy riffs on what you’ve said, and I won’t, but I do think there are a couple of points worth making.

First, I’d agree that we aren’t (yet) effective at turning the legally uneducated into people who interact competently with the legal system (and I should probably pause for a moment to underscore the fact that that’s not the same thing as encouraging pro se representation. This is not about “every person their own lawyer”, it’s about “everybody able to find out what they’re expected to do”, just as it has been since Edward Coke decided to deliver commentary on English law in English). On the other hand, we would have to work very hard to be less effective in that respect than a system of commercial publication that poses the economic and intellectual barriers that West and Lexis do.

You point to a middle ground, essentially one of information and legal-services brokers acting on behalf of underserved populations. That, I think, is dead on, and it takes in journalists, government officials, investment counselors, hospital administrators, and others who serve the middle class as much as it does legal-aid lawyers. The one place where we know to a certainty that we’ve been more than usually effective is in serving government lawyers. That is true of us and it has been true of every single open-access project of significant scale that we are acquainted with. The simple fact of the matter is that in the US, just as in South Africa and India, government access to government work product is pretty horrible. But I wouldn’t stop with that — there are many underserved populations, and I rattle on about them at some length in a very old blog post at http://blog.law.cornell.edu/tbruce/2008/03/08/who/ .

You mention that we don’t do caselaw as well as we do stats (and soon regs), and you’re right — both about the fact that we don’t do them as well, and about the reasons, which are primarily economic. The LII is operated by five people. For most of its 17-year history, it was operated by 3 people. It will be interesting to see what a kind of guided crowdsourcing will do for the economics of caselaw commentary. But for the moment, I’d like to point out that we don’t invest as much effort in caselaw because it’s not as important to our audience. The public sees caselaw as an interpretive layer atop a much more immediate body of regulations and statutes. While perhaps some would argue that that relative valuation has its roots in a lack of appreciation for how our system works, we think that (particularly when it comes to things like the size of truck tires, or which fruits you can import from Zambia) the public can often find things out for itself. Again, it’s crucially important to understand that the public is not, for the most part, trying to argue edge cases in difficult matters. It is trying to manage risk, get context, take cross-bearings on the advice of professionals, or fortify itself for initial encounters with professionals in a system that even educated, sophisticated people find scary.

The comment box being more than overfull, I’ll ring off — but thanks again for a thoughtful and interesting post.